Pong Su (No 11)
[2005] VSC 20
•10 February 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1424 of 2004
| THE QUEEN |
| v |
| YAU KIM LAM KIAM FAH TENG CHIN KWANG LEE TA SONG WONG DONG SONG CHOI MAN SUN SONG MAN JIN RI JU CHON RI |
---
JUDGE: | KELLAM J. | |
WHERE HELD: | MELBOURNE | |
DATE OF RULING: | 10 February 2005 | |
CASE MAY BE CITED AS: | In the Matter of the Pong Su (Ruling No. 11) | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 20 | |
---
CRIMINAL LAW – Admissibility of evidence obtained by use of listening device – Failure of Australian Federal Police to approve persons to exercise the authority conferred by a warrant – Exercise of Bunning v Cross discretion – Customs Act 1901 (C’th) s.219B and D.
---
APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr J. Champion SC with Mr M.P. Cahill | The Solicitor for the Commonwealth Office of Public Prosecutions |
| For Yau Kim Lam | Mr G. Meredith | Tony Danos |
| For Kiam Fah Teng | Mr G. Georgiou | Victoria Legal Aid |
| For Chin Kwang Lee | Mr A. Shwartz | Halikopoulos Lawyers |
| For Ta Song Wong | Mr T. Lewis | Lethbridges |
| For Dong Song Choi | Mr J. O’Sullivan | Galbally & O’Bryan |
| For Man Sun Song | Mr P. Faris, Q.C. with Mr I. Hayden | Ellinghaus & Lindner |
| For Man Jin Ri | Mr N. Papas | Slades & Parsons |
| For Ju Chon Ri | Mr S. Russell | Leanne Warren & Associates |
HIS HONOUR:
Mr Meredith of Counsel on behalf of Yau Kim Lam, and Mr Shwartz of Counsel on behalf of Chin Kwang Lee, submit that certain material upon which the prosecution seeks to rely and obtained by use of a listening device, should not be admitted into evidence because it was illegally obtained, there being no “relevant approval” of those police using the device during the currency of the monitoring process. Furthermore, it is submitted that the circumstances are such that in the exercise of my discretion, I should not permit the evidence to be admitted.
The Legislative framework
Section 219B of the Customs Act 1901 (Cth) (“the Act”) provides that it is unlawful for an official of a Commonwealth law agency, or a person acting by arrangement with such an official, to “use” for the purposes of narcotics enquiries, a listening device “for the purposes of listening to or recording words while they are being spoken by a person”. However the section provides exceptions to that provision, including where the official acts in accordance with a warrant issued to the agency in accordance with the Act.
Section 219D of the Act states:
“Exercise of powers under warrant.
(1)The authority conferred by a warrant issued to a Commonwealth law enforcement agency under s.219B shall be exercised only by the chief officer of the agency or by other officials of the agency approved, for the purposes of that warrant or for a warrant issued under that section, by the chief officer or by an authorised official of the agency.
(2)In sub-section (1), a reference to an authorised official of the Commonwealth law enforcement agency is a reference to an official of the agency appointed by the chief officer of the agency, by writing, to be an authorised official of the agency for the purposes of this section.”
Pursuant to s.219D(2) of the Act the Commissioner of the Australian Federal Police Force, Mr Keelty, on 4 July 2001 authorised Graham Morris to be an “authorised official” of the Australian Federal Police (“AFP”) for the purposes of approving members of the AFP to exercise the authority conferred by warrants issued under s.219B of the Act. Thus, as at April 2003, Mr Morris had the lawful power to approve members of the Australian Federal Police Force to use a listening device for the purposes of narcotics enquiries where the use of such listening device was authorised by the issue of a warrant.
Background
On Friday 11 April 2003, Federal Agent Celeste Johnston attended upon a member of the Administrative Appeals Tribunal (Cth) (“AAT”) to obtain a warrant (“the warrant”) pursuant to the Act for the purposes of the use of a listening device in relation to the accused Kiam Fah Teng. The warrant was issued at 8.47 pm that evening.
On the morning of Saturday 12 April 2003, Federal Agent Johnston forwarded a Minute to the “Officer in Charge, Telephone Intercepts, Canberra”. This, like all other relevant communication with Canberra was by electronic transmission. The names on the list provided in that Minute entitled “Authorised Persons List” were approved by Graham Morris at 12.51 pm on Monday 14 April 2003. On Saturday 12 April 2003, Federal Agent Johnston forwarded a further authorised persons list to “the Officer in Charge, Telephone Intercepts, ACT” containing an additional four names. This additional list was approved by Graham Morris at 12.00 pm on 14 April 2003, (that is, some 51 minutes before the list which had been sent earlier that day was approved by him). In consequence of his approval of the names on the first list sent to him by Federal Agent Johnston, Graham Morris caused a schedule to be created. That schedule set out the names of all persons whose names appeared on that list. The document containing the schedule noted that Mr Morris approved in writing the names of the persons appearing in the schedule as officials who “may exercise the authority conferred by warrant issued on 11 April 2003 under the provisions of s.219B of the Act in relation to the use of a listening device for the purpose of listening to or recording words spoken by or to or in the presence of Teng Kin‑Fai, anywhere in Australia”. Accordingly, as from 12.51 pm on Monday 14 April 2003 the persons whose names appeared on the first list sent by Federal Agent Johnston on the previous Saturday morning were lawfully authorised to use listening devices under the warrant.
It will be noted that the document and schedule prepared by Morris referred to a warrant issued on 11 April 2003. However, the lists of authorised persons forwarded by Federal Agent Johnston to Canberra referred to a warrant in relation to Teng which was “obtained on 10 April 2003”. I am satisfied from the evidence of Federal Agent Johnston and the other material before me that the notation of 10 April 2003 made by her was a typographical error and that any irregularity in relation to that matter is explained fully. It is quite clear that the written approval to exercise authority conferred related to a warrant issued on 11 April 2003 in relation to Teng. However, that is not the only matter upon which Mr Meredith and Mr Schwartz rely.
On 14 April 2003, Federal Agent McKiernan forwarded a further authorised persons list to the Officer in Charge, “Telephone Intercepts, ACT”. This document requested the inclusion of a number of persons in the “authorised persons list in relation to Operation Sorbet in respect of all TI warrants obtained to date”. The evidence is that “TI” stands for “telephone intercept”. Mr McKiernan gave evidence before me that it was his intention to seek authority in relation to listening devices under the Customs Act as well as authority relating to telephone intercepts. He gave evidence before me that the list was sent to Canberra by electronic transmission between 6.00 pm and 6.15 pm on 14 April 2003. Those who received the document in Canberra, perhaps not surprisingly, treated the matter as a request in relation to telephone intercept warrants and filed the document as a request for persons to be authorised in relation to telephone intercepts. The document never received the required approval to exercise authority conferred by a warrant issued under s.219B of the Act. Of importance, this list contained the names of Federal Agents Cullen, Rowntree and Nieman whose names did not appear on the earlier “authorised persons list” forwarded to Canberra and which were approved on 14 April 2003. Thus they were not authorised to use a listening device under the warrant.
In consequence of the issue of the warrant a listening device was placed in a vehicle being operated by Teng on Sunday 13 April 2003. Monitoring of that listening device commenced. However, it was not until 10.37 am on Monday 14 April that any voices were heard and recorded.
The consequences of the above matters were as follows:
(a)The listening device installed in Teng’s vehicle on Sunday 13 April 2003 was monitored by Federal Agent Ding but nothing was heard. She was not approved to monitor the device but as no words were heard or recorded, nothing of significance arises thereby.
(b)The listening device placed in Teng’s car was used and conversations recorded between 10.37 am and 12.51 pm on Monday 14 April 2003 without any person being approved pursuant to s.219D(1) of the Act.
(c)During the period between 10.37 am and 12.51 pm on Monday 14 April 2003 Federal Agents Jackson and Cullen used the listening device to monitor conversation. Jackson became approved to do so at 12.51 pm, his name being upon the list sent by Federal Agent Johnston to Canberra on the previous Saturday. Cullen however was not approved to do so, although his name did appear on the “TI” list sent by Federal Agent McKiernan to Canberra, on the evening of 14 April 2003, which list was never approved by Morris.
(d)Cullen continued to use the listening device and monitor conversations throughout the day of 14 April until 3.41 pm. He had no approval to do so and no request had been forwarded to Mr Morris in Canberra to grant such approval pursuant to s.219D(1) of the Act.
(e)On 15 April 2003, Federal Agents Cullen, Rowntree and Nieman used the listening device and monitored recordings. In addition Nieman did so for a further period of time early on 16 April 2004. During these periods, none of these agents had approval to do so, although their names appeared on the list sent to Canberra by McKeirnan relating to “TI” authority on the evening of Monday 14 April 2003.
Thus there was a clear failure on the part of the AFP to ensure that there was compliance with the Act in relation to the approval of persons to use the listening device the subject of the warrant.
The explanation for failure to comply with the Act
Federal Agent Celeste Johnston, who obtained the warrant and sent the “Authorised Persons List” to Canberra on Saturday 12 April 2003 gave evidence before me. It was she who attended upon the relevant AAT member with an affidavit drafted by her, but sworn by one of her superiors, on the evening of 11 April 2003. Soon after obtaining the warrant she prepared the “Authorised Persons List” and the next morning, soon after 9 am, she sent that to Canberra to the “Telephone Intercept Department” (“TID”) which she said was responsible for both telephone intercepts and listening device warrants. The list was sent with all other relevant documents including the warrant, which was scanned and forwarded electronically to Canberra. In addition, the original documents were forwarded to Canberra. She said that she believed she was adhering to standard practice. She said, “As I mentioned, in doing so the documents are uploaded into the system, it’s forwarded to that division, once that’s done that’s the end of the process from my perspective”. She said that she did not receive a response from Canberra and at that time it was not normal to receive a response. She said that she was not aware when she sent the material to Canberra on the Saturday morning that it would not be acted upon until the following Monday morning. Her belief was that the list had been accepted and received by the “appropriate department”. Under cross-examination Ms Johnston said it was her belief that once she forwarded the “Authorised Persons List” to the “TID” then the obligation to ensure that persons were approved under the legislation was “fulfilled”. She said that she was not acquainted with s.219D of the Act and that it is only since April 2003 that she has “learned that the list that is forwarded by someone such as myself is then utilised to complete a schedule which is forwarded to some other department or filed by TID”. She said that she had been a member of the Australian Federal Police for a period of three years leading up to April 2003.
Mr Graham Morris who is and was at all relevant times a team member of the “Statutory Procedures Team” which is part of the telephone intercept division gave evidence before me. He said that his “prime responsibility is the recording of warrants, the registering of them and the reporting of them to the Minister”. He confirmed that he held an authority from the Commissioner of Federal Police under s.219D to approve persons to exercise the authority conferred under a warrant issued under s.219D of the Act. He confirmed that he had “rubber stamped and signed and dated” each of the lists forwarded to him by Federal Agent Johnston. He confirmed that he did so on 14 April 2003. In relation to the gap in time between the sending of the list by Federal Agent Johnston and his approval of the list, he said, “I would assume that this list was either (sent by electronic data) or faxed on the Saturday morning and because the area that I work in doesn’t work Saturdays and Sundays it wouldn’t have been picked up by us until the Monday”. He was unable to provide an explanation for how it was that he “rubber stamped“ the additional list forwarded by Ms Johnston some 51 minutes before he “rubber stamped” the first list forwarded by her.
In relation to the document forwarded by Federal Agent McKiernan on 14 April 2003, Mr Morris said that because the document purported to relate to telephone intercept material, the list was placed on a telephone intercept file and not treated as a request for approval of persons to use listening devices.
Federal Agent Ding gave evidence before me that she had monitored the listening device on the morning of 13 April 2003 but that no conversation was heard. She said that at that time she understood that she was required to be approved to perform the duty and that she was so approved. Under cross-examination she said that she believed it was the case officer who provided the authorisation. She had no knowledge of what was required by s.219 of the Customs Act. She gave evidence that she had been a Federal Police Officer for a period of 14 years.
Federal Agent Nieman gave evidence before me and confirmed that he had undertaken monitoring tasks in relation to the relevant warrant on 16 April 2003. At the time he had been a member of the Australian Federal Police Force for a period of approximately two months. He said that at the time his understanding was that people who were to perform monitoring duties were to be included on “an authorisation list”. He said that he had made no enquiries as to whether his name was on the list but that he “expected” it to be so included.
Federal Agent Hajil gave evidence before me that he had performed duties undertaking monitoring of the listening device in question. He had been a federal agent for approximately one month leading up to April of 2003. He was unaware of any requirement for authorisation or approval to monitor listening devices at the time in question.
Federal Agent Rowntree gave evidence before me that in April 2003 he had conducted duties in relation to monitoring the listening device the subject of the relevant warrant. He had been an operational member of the Australian Federal Police since January 2003. He said that at that time he was aware of the requirement that he was to be authorised to conduct monitoring duties. He said that his belief was that he was so authorised at the time it being his “understanding that the paperwork had been done and that it was appropriate for me to be there”.
Federal Agent McKiernan gave evidence before me that as at April 2003 he was the acting team leader of one of two teams whose primary duty was to undertake long term and/or major narcotics investigations. In April 2003 he became aware of an operation known as “Operation Sorbet” which was being conducted primarily by the other narcotics team. His team was called upon to provide additional resources because of the scale of the investigation being conducted in relation to the alleged importation of heroin during the period of some days following 13 April 2003. He said that he prepared the “Authorised Persons List” dated 14 April 2003 which was sent to Canberra by him in the early evening of that day. He said it was his intention that the list was to provide authorisation for people to listen to telephone intercepts and/or listening device product as required. He said that he had no specific memory of preparing the list in question. He said that at the time the Australian Federal Police were “extremely pressed”. His explanation for his prepared list not referring to listening device intercepts was that he “left off LD in error”. He gave evidence that his intention was that the list he sent was to relate to all telephone intercept and listening device warrants for the operation in question.
The submissions on behalf of the accused Yau Kim Lam and Chin Kwang Lee
Mr Meredith and Mr Schwartz contend that the evidence demonstrates that for the period of time prior to 12.51 pm on Monday 14 April 2003, the listening device in question was operated in the absence of any approval at all and thus any evidence obtained in consequence thereof was obtained illegally. Furthermore, it is submitted that evidence obtained by agents Cullen, Rowntree and Nieman’s use of the listening device was never the subject of appropriate approval under the Act and was therefore obtained illegally. It is submitted that I should not exercise my discretion to admit the evidence because of the nature of the demonstrated illegality of the means by which the evidence was obtained. Mr Meredith and Mr Schwartz contend that in terms of the exercise of my discretion the problems identified by the evidence reveal a systemic deficiency on the part of the AFP in relation to the grant of authority to exercise power under warrants issued in relation to listening devices. They point out that the legislation is designed to protect the civil rights of citizens and submit that the AFP were reckless in their conduct, and that such recklessness warrants the opprobrium of the Court and does not justify the exercise of my discretion.
The prosecution on the other hand contends that the failure of the AFP to ensure that only approved persons used the listening device, was a failure to comply with “administrative requirements”. It is submitted that the Act does not provide that evidence listened to and recorded in breach of its provisions becomes inadmissible, as a matter of law. It is submitted that by not including such serious sanctions for the failure to adhere to the legislation it can be said that Parliament foresaw the possibility that mistakes would occur and that the impact of such mistakes was required to be evaluated by judicial officers taking into account “the whole of the attendant circumstances”. It is submitted that Federal Agents Johnston and McKiernan acted in good faith in carrying out their respective roles with respect to compiling the “Authorised Persons Lists” and that there is established no impropriety or acting in bad faith. It is submitted by the prosecution that the failures in respect of administrative requirements do not amount to recklessness. Furthermore, it is submitted that there is no unfairness to either the accused Lam or Lee as a result of the admission of the evidence.
Conclusion
I am satisfied, as submitted by the prosecution, that each of the parties who gave evidence before me, and in particular Federal Agents Johnston and McKiernan acted in good faith in carrying out their respective roles with respect to compiling the “Authorised Persons List”. Ms Johnston obtained the warrant, compiled a list of persons who were to be approved to use the listening device and sent that to Canberra with the belief that by doing so there was compliance with what was required of her. She sent a further list once she became aware of the possibility that further persons might require approval. Likewise McKiernan prepared a list of persons which included the names of Cullen, Rowntree and Nieman, although clearly he failed to exercise the required care to ensure that it was clear to those in Canberra that what he intended was that such persons be approved for listening device operations rather than telephone intercept duties. It is a matter of concern that Federal Agent Cullen was permitted to use the listening device before that list was ever sent to Canberra. Nevertheless, I am satisfied that neither Johnston nor McKiernan acted with any intentional impropriety.
The issue which arises in this case is, as counsel for the two relevant accused persons point out, one of systemic deficiency. The evidence before me does raise serious questions as to the adequacy of the training of the AFP officers involved. The evidence before me raises serious questions as to systems of communication between branches of the Australian Federal Police. The ordinary member of the public might find it to be quite extraordinary that a request sent to Canberra on a Saturday morning for the approval of persons to undertake activities, which require to be authorised by a warrant issued by a judicial officer, are not approved until some time early in the afternoon of the following Monday. It is surprising that there were not precedent forms which might be available for use by officers notifying Canberra of the names of persons to be approved either for listening device warrants, or for telephone intercept warrants. What occurred in this case suggests poor management processes. Officers of the AFP who are conducting surveillance activities under the authority of a warrant, and who require to be approved to do so, need to know that they are so approved. Officers of the AFP who make application to judicial officers for warrants, and then put into effect surveillance and other activities pursuant to such warrants, should at least have sufficient training to enable them to have an understanding of the nature of the legislation under which they are operating. If approval is required to undertake surveillance, then that approval should be capable of being granted reasonably contemporaneously with a request, and not some days later.
In my view there is some weight in the arguments advanced by defence counsel. Whilst it is true, as the prosecution contends, that the matters which are before me are reflective of “administrative oversight” it is apparent that the number of administrative oversights which took place in this case, and the manner in which they occurred are related to the failure of the AFP to train its operatives properly and to ensure that there are appropriate systems of communication in place to ensure that operatives who are approved under warrants, are so approved contemporaneously with the issue of the warrant, and furthermore are informed that they have such authority. There is a basis to say that the processes of the TID office in Canberra in this case were a “rubber stamp” exercise rather than a proper process of approval as required by the Act.
Accordingly, it can be seen that the breaches in this case are not insignificant or momentary. The question therefore arises as to the appropriate exercise of my discretion.
The exercise of discretion
Counsel for Lam and Lee contend that the conduct of the AFP in relation to the authorisation of persons to use listening devices pursuant to the warrant is such that the evidence obtained thereby should be excluded in the exercise of the discretion articulated in Bunning v Cross.[1] As is apparent from that decision, a judge has a discretion to exclude evidence obtained by unlawful or unfair means. The exercise of the discretion requires the consideration of and the weighing of competing public requirements against each other. As Stephen and Aitkin JJ said:[2]
“ … [This] involves no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrong doer, and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law.”
[1] (1978) 141 CLR 54.
[2] At p.74.
The principal cause of the failure to have appropriate authorities in place at the time that the monitoring of the listening device commenced, and for the period of time until 12.51 pm on Monday 14 April 2003, was the failure of the Telephone Intercepts Division in Canberra to have any appropriate system established to ensure that approval to use listening devices was granted as soon as possible after notification of the names of those persons proposed to be authorised. A secondary cause of that failure was the mistaken belief of Federal Agent Johnston that by transmitting the names of those proposed to be authorised to Canberra, the approval process was completed. Had her transmission been attended to promptly by TID or alternatively had she understood the actual requirements of the Act, there is little doubt that appropriate approval would have been established before the monitoring of the listening device in question commenced.
The cause of the failure to ensure that Federal Agents Cullen, Rowntree and Nieman were approved to conduct monitoring of the listening device after 6.00 pm on Monday 14 April 2003 was the failure of Federal Agent McKiernan to make it clear that the list of authorised persons he sent to TID in Canberra related to the warrant issued pursuant to s.219B of the Act relating to listening devices rather than to telephone intercepts.
The principal cause of Federal Agent Cullen monitoring the listening device prior to 6.00 pm on Monday 14 April 2003 without authority, was the failure of Federal Agent Johnston to place his name on either of the lists she forwarded to TID in Canberra on the morning of 12 April 2003. The cause of that failure is not clear but I accept that the events which were occurring in the vicinity of Boggaley Creek at the time did indeed cause significant strain on AFP Melbourne resources.
As I have said, I consider that the breaches in question were not committed in bad faith, nor with any intention to gain an improper advantage. The nature of the breaches is not such as to have affected the cogency of the evidence. The failure of the AFP to obtain the relevant approvals was not wilful. Rather it arose from ignorance of procedural requirement on the part of individual officers, a lack of care, and a failure by TID to have adequate systems of approval in place. It is a matter of concern that TID failed to have adequate systems in place, particularly when the issue of adequate control of requests for approval under s.219 of the Act had arisen previously.[3] Although, I am not satisfied that this amounts to recklessness, as contended by Mr Meredith and Mr Schwartz, it is obviously a serious matter.
[3] In R v Ng (unreported County Court 22 March 2000) Judge Wodak had cause to consider the unlawfulness of the issue of a listening device and noted in the circumstances of that case that there should have been “ … better control of the requests … made to Canberra …” for approval.
Failure to comply with processes set down by Parliament and which are designed to give legal authority to incursions into the lives of citizens and which would otherwise be unlawful is obviously a matter of importance. Furthermore of course, such failures present the risk that evidence which should otherwise be before a jury may not be admitted. Finally, as here, there is the practical consequence of the failure which is that not inconsiderable time and cost has been consumed by the matter being considered and determined in the court proceedings.
However, to return to the principal question which arises as to whether or not the balance between the competing public policy issues is such that the evidence should be excluded. The offence under consideration is an extremely serious one. The evidence obtained by the use of the listening device is (subject to other issues of admissibility yet to be argued) of high probative value. The failures took place at a time of considerable strain upon AFP resources. This explains partly the failure to ensure that Cullen, Rowntree and Nieman were appropriately approved. The breaches by the AFP of procedural requirements were not deliberate. The warrant was obtained properly and there were legitimate endeavours made to ensure that appropriate persons were approved to use the listening device.
In the end result, and whilst it is a matter of concern that the AFP did not comply strictly with their obligations under the Act, and weighing the competing public policy issues in the balance I have concluded that the evidence in question should be admitted notwithstanding the non‑compliance with the Act which the evidence establishes occurred in this case.
---
0